Washington, D.C.USA: The US Department of Homeland Security (DHS) has expanded a process that allows certain children born in the United States to foreign government employees to register as lawful permanent residents. However, DHS has acknowledged that implementation of the new rule is limited by a federal court injunction.
The interim final rule applies when neither parent is a US citizen and at least one parent was employed by a foreign government at the time of the child's birth. The rule took effect on September 4 and applies only to children born on or after that date.
The change implements President Donald Trump's Executive Order 14418 and expands an existing regulation that covers children born in the United States to accredited foreign diplomatic officers.
Under the amended regulation, the term “foreign government employee” replaces the narrower term “foreign diplomatic officer.”
The expanded definition includes accredited foreign diplomatic officers and nationals employed by their country's embassy or consulate. It also covers individuals working for foreign governments in an official capacity, as well as employees of international organisations who have international-organisation immunity.
However, the rule excludes several categories of workers. These include personal employees and attendants of foreign officials, such as personal assistants, chauffeurs and housekeepers.
Certain employees of state-owned enterprises are also excluded, along with third-country nationals working for foreign governments, some contractors and foreign government employees who are visiting the United States in a personal capacity.
Under the new process, an eligible individual may be considered a lawful permanent resident from birth. Registration for permanent residence is voluntary. However, individuals who are not US citizens may still be subject to alien-registration requirements under the Immigration and Nationality Act.
DHS is also updating Form I-485 and its instructions. The changes replace references to people born in the United States under diplomatic status with broader language covering children born to foreign government employees.
The department is also revising Form G-325R. The form will apply to US-born children who do not acquire citizenship at birth, do not use the amended permanent-residence process and remain subject to federal alien-registration requirements.
DHS said the rule would not be applied to members of the certified class in Casa Inc. v. Trump or in any manner that conflicts with a preliminary injunction issued by the US District Court in Maryland. The restriction will remain in place unless the government obtains relief from the court.
The Fourteenth Amendment generally grants US citizenship to people born in the United States and subject to its jurisdiction. The US Supreme Court has historically recognised limited exceptions, including children born to accredited foreign diplomatic representatives.
Federal immigration authorities have allowed such children to register as permanent residents since at least the 1940s. Formal regulations establishing the procedure were issued in 1982 and required applicants to demonstrate that they had not abandoned residence in the United States.
